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Click here for the full text of this decision FACTS:Shannon L. Hinkle and Craig S. Hinkle were married on Jan. 4, 1997, and separated on Oct. 31, 2003. The events of the separation were acrimonious and comprised one of the bases of Shannon’s allegations of family violence. Shannon testified that Craig “pulled a gun” and pointed it at her during a physical altercation on Oct. 31, 2003, at the parties’ residence. Although Craig testified that his memory of that incident was hazy, he stated he acted only defensively and did not “pull a gun” or aim a gun at Shannon. Immediately following the alleged assault, Shannon left the parties’ infant child in the care of Craig at the parties’ residence while she went to “confront” Craig’s alleged girlfriend, who lived five minutes to 10 minutes from the residence. Shannon returned alone to the parties’ residence approximately 30 minutes later. Shannon left the residence later that evening with the parties’ child and stayed with family. Neither party contacted police regarding the incident. Shannon filed for divorce on Dec. 8, 2003. On Dec. 13, 2003, Shannon and Craig entered into a visitation agreement under which Craig’s visitation with their child would be supervised by his family members. Craig filed an answer on Dec. 15, 2003. In his answer, Craig denied he had “a pattern of child neglect or family violence within two years preceding the filing of this case or during the pendency of this case.” In addition, Craig alleged in part that “[Shannon] has committed family violence toward [Craig] causing injury to [Craig's] person within two years preceding the filing of this cause or during the pendency of this cause.” On June 23, 2004, Craig filed a “first amended counterclaim and request for a hearing for temporary orders.” In addition to restating the claims in his answer, Craig alleged in relevant part that “[Shannon] should be required to complete anger management counseling.” Further, Craig contended that the maternal grandfather of the parties’ child had “repeatedly displayed anger in the presence of the child” and should be denied access to the child until he completed anger management counseling. An amended petition for divorce was filed by Shannon on July 13, 2004. Shannon argued in relevant part that Craig had “a history or pattern of committing family violence during the two-year period preceding the date of filing of this suit.” Further, the amended petition included “causes of action for assault” based on the Oct. 31, 2003, incident. Following a July 19, 2004, hearing, the trial judge signed “temporary orders” on April 19, 2005, appointing Shannon temporary managing conservator of the parties’ child and appointing Craig temporary possessory conservator. A jury trial was held July 25 through 27, 2005. Both parties testified with respect to the Oct. 31, 2003, incident. The jury was charged in relevant part: “A parent may not be allowed access to a child if the parent has a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit unless awarding access to the child would not endanger the child’s physical health or emotional welfare and would be in the child’s best interest.” The first question submitted to the jury was, “Has there been a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit?” The jury answered, “No.” In the final decree of divorce signed by the trial judge on Nov. 22, 2005, the trial court appointed the parties joint managing conservators. The decree stated, in part, “It has been represented to the court that there has been no pattern of child neglect or family violence by any party to this case within two years preceding the filing of this case or during the pendency of this case.” On Dec. 21, 2005, Shannon filed a “motion for new trial and motion for modification of judgment.” Shannon contended, “This case specifically has a showing of violence and pulling two guns by [Craig] and trying to murder the [Shannon] and child.” Therefore, Shannon argued “the jury verdict has no reasonable evidence or basis.” In addition, Shannon asserted the judgment did not meet the statement in the ruling set out by the court and should, therefore, be amended to comply with the court’s ruling. After a Jan. 17, 2006 hearing on Shannon’s motion, the trial judge signed a reformed final decree of divorce on Feb. 2, 2006. The judge amended the portion of the original decree respecting “family violence” to read: “The jury found that there has been no pattern of child neglect or family violence by any party to this case within two years preceding the filing of this case or during the pendency of this case.” On Feb. 3, 2006, Shannon appealed. HOLDING:Affirmed. Shannon made legal and factual sufficiency challenges to the jury’s finding of no family violence as incorporated in the judgment. Shannon contended that because those findings were insufficient, Craig must be removed as joint managing conservator and Shannon be appointed sole managing conservator pursuant to Texas Family Code �153.004. Under �153.131(b), the court stated, a rebuttable presumption existed that the appointment of joint managing conservators is in the best interests of a child. A finding of a history of family violence involving the parents of a child removes that presumption, the court stated. In addition, a party requesting to be appointed sole managing conservator of a child has the burden to rebut the statutory presumption that joint managing conservatorship would be in the best interest of the child. Because Shannon sought to be appointed sole managing conservator of the parties’ child, the burden was on her to show evidence of family violence by Craig to overcome the presumption in favor of joint managing conservatorship created by �153.131(b). Shannon, the court stated, cited the proposition that “if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it.” Shannon contends that, based on the evidence in the record, a reasonable jury “could only have found family violence.” However, the court stated that “nothing in the record in this case undisputedly showed a history or pattern of family violence by [Craig].” Craig, the court stated, testified he did not point a gun at Shannon and acted only defensively on Oct. 31, 2003. Shannon left the parties’ child alone with Craig immediately after the alleged assault while she went to confront Emily Garrett. During the following month, Shannon continued to leave the child alone with Craig on the days she worked. In addition, the court noted that Shannon did not call the police regarding the alleged assault and did not include assault claims in her original divorce petition. Christine Stanovich, whom Shannon called soon after the alleged assault, did not remember whether Shannon stated that Craig had pointed a gun at her. Robert Stanovich testified that Shannon told him she was concerned about Craig harming himself with his guns. Emily Garrett testified Shannon did not state that Craig had pointed a gun at her. The court stated that the jury, as factfinder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Applying a legal sufficiency standard, the court concluded that the evidence in the record would allow a reasonable and fair-minded jury to find Craig did not commit an act against another member of the family that was intended to result in physical harm. The court then did a factual sufficiency review. Based on the record, the court concluded that the jury’s finding of no family violence was not “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” The court also affirmed the trial court’s decision not to grant a new trial on the issue of family violence. Because there was “some evidence” to support the trial court’s decision to deny Shannon’s motion for new trial, the court concluded the trial court’s decision was neither arbitrary nor unreasonable. OPINION:Lang, J.; Wright, Richter and Lang, J.J.

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